Usfs

concurring in part and dissenting in part:

Respectfully, I dissent from Section VI of the majority opinion which makes it harder to protect the threatened Canada Lynx and its critical habitat, and puts the species at increased risk. I do not agree with the majority that Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985) (“Thomas ”), should be put into the shredder by inferring that Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 , 129 S.Ct. 365 , 172 L.Ed.2d 249 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 , 130 S.Ct. 2743 , 177 L.Ed.2d 461 (2010), implicitly “undermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny.” Maj. op. at 1090. I do not read Winter and Monsanto as casting a dark shadow on the ESA’s legislative purpose and our Ninth Circuit precedent. Winter and Monsanto are not “clearly irreconcilable” with Thomas as required for a three-judge panel to overturn settled Ninth Circuit case law. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003).

Winter and Monsanto focus on NEPA’s — not the ESA’s — standard for in-junctive relief. Winter and Monsanto do not address the ESA, which has a unique…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COTTONWOOD ENVIRONMENTAL Nos. 13-35624

LAW CENTER, 13-35631

Plaintiff-Appellee /Cross-Appellant, D.C. No. 9:12-cv-00045- v. DLC

UNITED STATES FOREST SERVICE;

FAYE KRUEGER, in her official OPINION capacity as Regional Forester for the U.S. Forest Service, Region One, Defendants-Appellants /Cross-Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted July 7, 2014—Portland, Oregon

Filed June 17, 2015

Before: Harry Pregerson, Richard A. Paez, and Paul J. Watford, Circuit Judges.

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Pregerson SUMMARY*

Environmental Law

The panel affirmed the district court’s holding that the United States Forest Service violated Section 7 of the Endangered Species Act when it failed to reinitiate consultation after the United States Fish and Wildlife Service designated critical habitat for the Canada lynx on National Forest…

Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

In 2000, the United States Fish and Wildlife Service (“FWS”) listed the Canada lynx, a snow-sturdy cousin to the bobcat, as a threatened species under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. FWS designated critical habitat for the Canada lynx in 2006, but did not include any National Forest System land. Subsequently, the United States Forest Service (“Forest Service”) issued standards and guidelines for. land management activities on National Forest land that responded to FWS’s listing and designation decisions. The Forest Service then initiated consultation with FWS under Section 7 of the ESA, 16 U.S.C. § 1536 (a)(2). FWS determined that the Forest Service’s standards and guidelines did not jeopardize the Canada lynx. Shortly after completing the consultation process, FWS discovered that its decisions relating to the designation of critical habitat for the Canada lynx were flawed. After re-evaluating the data, FWS designated extensive National Forest land as critical habitat.

In this case, we must decide whether the district court properly determined that the…